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RADIOCOMMUNICATIONS REGULATIONS (AMENDMENT) 1997 NO. 121
EXPLANATORY STATEMENTSTATUTORY RULES 1997 No. 121
Issued by the Authority of the Minister for Communications and the Arts
Radiocommunications Act 1992
Radiocommunications Regulations (Amendment)
Under subsection 314(1) of the Radiocommunications Act 1992 the GovernorGeneral may make regulations prescribing matters required or permitted to be prescribed under the Act or necessary or convenient to be prescribed for carrying out or giving effect to this Act. This regulation makes a series of amendments to the Radiocommunications Regulations ('the Principal Regulations') in relation to a range of matters, which can be grouped as follows:
1. Amendments consequential on the repeal of the Technical Licence Specifications provisions of the Radiocommunications Act 1992, and the making by the Spectrum Management Agency (SMA) of generic Licence Conditions Determinations under paragraph 107(1)(f) of the Act.
(Regulation 2)
2. Amendments to definitions of different types of stations which reflect changes in licensing policy and services conducted by stations.
(Regulation 2)
3. Removal of the Amateur Examinations from the Regulations as the first step in consolidating examinations into a single stream of examinations approved by the SMA. Examinations are conducted in relation to the issuing of certificates of proficiency under the Act.
(Regulations 2, 4, 5, 6, 7, 8, 9)
4. Updating cross-references to and the definition of the Spectrum Plan made by the SMA.
(Regulations 2, 10)
5. Declaration of satellites as Australian satellites for the purposes of the Act. The Act does not apply to satellites unless they are declared to be Australian satellites in the Regulations.
(Regulations 2, 3)
6. Amendments to definitions of stations consequential on the introduction of accreditation of qualified persons to undertake coordination work previously only undertaken by the SMA.
(Regulation 2)
Details
1. Repeal of Technical Licence Specifications and introduction of Licence Conditions Determinations
Under the Radiocommunications Act 1992 ("the Act") as originally in force, the SMA was able to impose generic conditions on licences in two ways - by technical licence specifications ("TLSs") made under section 179(1) of the Act, and by regulation made under section 107(1)(f) of the Act. In 1995 the Act was amended to enable generic conditions to be imposed under section 107(1)(f) by means of determination made by the SMA rather than by regulation. The procedures for making the conditions varied as between the two heads of power, in that public consultation was required before making a TLS, but no public consultation was required before making a regulation, or subsequently a determination, under section 107(1)(f).
The existence of the two powers to impose generic conditions gave rise to some doubt as to the extent of each of the powers, and of the need to conduct formal public consultation in relation to proposed conditions. It was also considered that maintaining a distinction between technical and non-technical licence conditions could cause inconvenience to licensees in that generic licence conditions applicable to one licence could be contained in two instruments. The Act has therefore been amended by the Radiocommunications Amendment Act 1997 so as to allow all generic licence conditions to be imposed by LCD made under paragraph 107(1)(f) of the Act. The Radiocommunications Amendment Act 1997 also repealed Division 6 of the Radiocommunications Act 1992 ('the Act') which dealt with TLS.
A number of consequential amendments to the Radiocommunications Regulations are required by the repeal of TLS from the Act. Other definitional changes are also necessary in order to facilitate the creation of LCDs.
The definition of 'licence conditions determination' is required as that term is used to replace the references in the Principal Regulations to technical licence specifications which were repealed.
Definitions to stations to reflect changes in licensing policy
Amendments are made to definitions of maritime coast station, major coast receive station, limited coast marine rescue station, maritime ship station, and outpost station to reflect increased flexibility in licensing policy and the kinds of services being provided by these stations.
The definition of 'maritime coast station' is amended to to remove the requirement that the licence issued for such a station specifically authorise communications with land mobile stations, aircraft stations and outpost stations. Instead it is intended that maritime coast stations generally be permitted to communicate with these stations, so long as they are principally used to communicate with ship stations.
The definition of "major coast receive" has been amended to reflect the current licensing conditions which recognise that these stations at times need to receive communications from outpost stations, in addition to aircraft and land mobile stations, and that although they primarily receive communications from maritime stations, they do not do so exclusively to these other kinds of stations.
The definition of "outpost station" has been refined in order to:
* provide that an outpost station may be used for purposes other than for the primary purposes specified in the definition (eg. to transmit or receive public correspondence);
* confirm that technical characteristics and available frequencies confine the operation of outpost stations to within the HF frequency band;
* acknowledge that there is not one school of the air but several;
* distinguish outpost stations participating in education programs provided by schools of the air within the HF frequency band, from those stations participating in an education program provided by a school of the air within another frequency band; and
* use terminology consistent with proposed Telecommunications legislation, and to remove over-specific terms such as 'manual trunk telephone exchange'.
A definition of 'carriage service' has been added to the regulations to be used in the definition of "outpost station" as well as in licence conditions. "Outpost station" previously referred to a "public telecommunications network" which was defined in the Telecommunications Act 1991. Following repeal of that Act by the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 there will be no definition of "public, telecommunications network". Telecommunications legislation now refers to "carriage services" which are made available to the public. The definition of carriage service inserted in the Regulations is the same as that in the Telecommunications Act 1997.
Repeal of provisions relating to conduct of Amateur Examinations
Under s. 122 of the Act, the SMA must not issue a certificate of proficiency unless, amongst other things, it is satisfied that the applicant has achieved satisfactory results in "approved examinations" or in "examinations conducted under the regulations" or the SMA is satisfied that the applicant would probably achieve such results. Regulations 15 -17A dealt with examinations for amateurs.
An "approved examination" is an examination conducted by the SMA or by a body or organisation approved by the SMA by written instrument. In relation to examinations conducted under the Regulations, regulation 13(1) states that the SMA "may conduct, or arrange the conducting of, examinations referred to in this Part." The Regulations require that the examinations be conducted by an "authorised person" and an "authorised person" is defined in Regulation 42 as "an officer or employee of the SMA. Thus, the system of conducting examinations under the Regulations is more restrictive than under the alternative system in s. 122. Also, changes to the content of the examinations conducted under the Regulations required amendments to the Regulations.
The inconsistencies between the two systems of examinations are not desirable. It is preferable that there be only one stream of examinations relating to amateurs, and it has been decided that these should be the examinations approved by the SMA, and that the Regulations relating to other examinations should be repealed as and when alternative arrangements can be put in place. Regulations 15-17A dealing with amateur examinations are repealed. Consequently, definitions of amateur stations in Regulation 3 required amendment to ensure that the definitions of the various categories of amateur station are not dependent on exams having been conducted under the Regulations.
References to the Spectrum Plan
Under section 30 of the Radiocommunications Act 1992, the SMA is given the power to prepare and make a spectrum plan. This power is exercised from time to time by the SMA (as equivalent powers were exercised by the Minister under the Radiocommunications Act 1983) and there has been for some years a succession of spectrum plans. The amendments change references contained in the Regulations to the "Radiocommunications - Australian Spectrum Plan" to the simpler term "spectrum plan". The term "Radiocommunications - Australian Spectrum Plan" is now out of date, as the spectrum plan is no longer referred to by that name. Also the previous definition of the term "Radiocommunications - Australian Spectrum Plan" in Regulation 3 defined it as that Plan as in force on 3 April, 1995, thus lockingin references to the spectrum plan as the spectrum plan in force on that date, and not including the later spectrum plans made on 28 April 1995 and 1 January 1997, and any amendments made to the spectrum plan from time to time.
It is considered to be more desirable to use the more simple term "spectrum plan" as that is the term used and defined in the Act itself, and the method of citation of the format title of the spectrum plan changes from time. It is also desirable to refer to the spectrum plan as in force from to time (as the SMA is permitted to do under s. 314A of the Radiocommunications Act 1992). The spectrum plan has to be updated regularly to reflect changes made to the International Telecommunications Union Table of Allocations, and in changing demands on spectrum, including by the introduction of new technologies and services.
Under the amendments all references to the former form of citation of the spectrum plan are replaced with the term "spectrum plan". In addition, a definition of the term "spectrum plan" is inserted into Regulation 3, which defines spectrum plan as "the spectrum plan in force from time to time under the Act".
Also, the Regulations repeal the Radiocommunications - Australian Spectrum Plan Statutory Rules 1990 No. 413 (made under the Radiocommunications Act 1983). Although that Plan has, in practical terms, been superseded by later plans made under the Radiocommunications Act 1992, it is repealed to avoid any doubt about its ongoing effect.
Amendments to satellites declared to be Australian Satellites
The SMA is receiving inquiries about licences to operate satellites that provide satellite communications services to Australia, particularly in view of the de-regulation of telecommunications from 1 July 1997. However, the Radiocommunications Act 1992 does not apply to satellites (or specifically to transmitters on satellites) unless they are "Australian satellites" (section 23(1) and section 16). The definition of "Australian satellite" set out in section 5 of the Act is:
"Australian satellite" means a space satellite that is declared by the regulations to be an Australian satellite for the purposes of the Act."
The only satellites declared to be Australian satellites under the Regulations were the former AUSSAT satellites, now operated by Optus. The previous regulation which declared the AUSSAT/Optus satellites to be Australian Satellites (Reg 4) referred to a "satellite operated for the purposes of providing telecommunications services under the general telecommunications licence granted to AUSSAT Pty Limited and notified in the Gazette on 26 November 1991".
This description of these satellites was out of date. With the advent of the new telecommunications legislation, this description would be even further our of date. New Regulation 4 updates the reference to the AUSSAT satellites so that they are described as satellites operated by Optus Networks Pty Limited. Regulation 4 also omits references to the holding of telecommunications licences, as this is considered unnecessary. Satellites used to provide telecommunications services to the public will have to be covered by carrier licences under the new Telecommunications legislation to come into operation on 1 July 1997, but it is not considered necessary or desirable to reflect the precise details of that in this Regulation which is designed to apply the Radiocommunications Act to those satellites. The new Telecommunications Act will impose separate obligations on the operators of satellites. Moreover, if for some reason the satellites were not covered by telecommunications licences, it would not necessarily be the case that the Radiocommunications Act should thereby cease to apply to them.
Of the several satellites presently providing satellite communications services to Australia, Optus is the only satellite operator that is licensed to operate transmitters on space stations. Also, Optus is the only satellite operator to pay Australia taxes for use of the spectrum under the Radiocommunications (Transmitter Licence Tax) Act 1983, as that Act only imposes tax on the issue and anniversaries of licences. Presently communications with non-Optus satellites are authorised by licensing of earth stations (ground stations) under an Earth licence (transmit and/or receive). This is presently done for INMARSAT and INTELSAT satellites, and to a more limited extent, for licences to use PANAMSAT satellites. In these instances, tax is paid by the earth station licensees rather than the satellite operator.
Iridium LLC have sought licensing of their satellite systems to provide Mobile Satellite Services to Australia. Iridium have agreed to being declared to be an "Australian satellite" for the purposes of the Radiocommunications Act 1992. The service to be operated by Iridium LLC will involve small hand-held earth stations comparable to a mobile phone. This type of service is not suitable for licensing of earth stations, as these earth stations will be mass-marketed, consumer items. Individual apparatus licensing of such devices is not appropriate. Consistent with SMA policy on mass-marketed devices, it is intended that this type of device be class licensed.
Regulation 4 declares satellites operated by Iridium LLC to be Australian satellites for the purposes of the Radiocommunications Act, thereby making it possible for the SMA to issue a licence in respect of the Iridium satellites. Without such a declaration, licensing of Iridium satellites is not possible.
The Regulation also defines the term "mobile satellite services" by referring to the definition in the spectrum plan, which in turn reflects the International Telecommunications Union definition of those kinds of services. That definition also contains a number of other terms, such as feeder links, which are defined in the spectrum plan, and for that reason the text of the definition has not been reproduced in the Regulations themselves. The Regulation also makes it clear that the phrase communications services to Australia is to be interpreted in the widest possible terms.
Regulation 4 has been drafted in such a way that readily accommodates the addition of additional satellites when that becomes necessary, by adding subparagraphs. It is thought that a number of satellites will need to be added to Regulation 4 over the next 2 - 3 years.
The definition of the term "AUSSAT service" has been deleted from the Regulations, as it is no longer required.
Amendments to Definitions of Receive Stations to reflect the fact that coordination work can now be performed by accredited persons as well as the SMA.
For the purposes of section 7(1)(b) of the Radiocommunications Act, the Principal Regulations contain 3 definitions of stations that are classified as receivers, and licensed under the receiver licence types. These three defined terms are: major coast receive station, earth receive station, and fixed receive station. These kinds of receivers need not be licensed unless the operator of the licensee desires to obtain the benefits of protection afforded to licensed receivers through a frequency assignment. The present definitions reflect this by including in the definitions of each station, a reference to the fact that the station has been the subject of coordination work undertaken by the SMA.
Until recently, all coordination work associated with the issue of an apparatus licence was undertaken by the SMA. The SMA has now accredited qualified persons to undertake such coordination under section 263 of the Radiocommunications Act 1992. It is therefore necessary to reflect this alternative for coordination in the definitions of receive stations.
The Regulation amends each of the definitions of receive station so that where they include a reference to coordination work being undertaken by the SMA, they also include a reference to coordination work being undertaken by persons accredited under section 263 of the Act.
The Regulations commenced on gazettal.
Attachment
Details of the Regulations are as follows:
Regulation 1
Proposed sub-regulation 1. 1 provides that the Radiocommunications Regulations (the Principal Regulations) are amended as set out in the these Regulations.
Regulation 2 (Interpretation)
Proposed Regulation 2 amends many definitions in Regulation 3 of the Principal Regulations. These can be grouped in the following ways.
Spectrum Plan Related Amendments (Sub-regulations 2.1, 2.2, 2.4, 2.14, 2.16, 2.22, 2.26, 2.25, 2.28 and 2.29)
The phrase "Radiocommunications - Australian Spectrum Plan" is omitted and the phrase 'spectrum plan' is substituted in the following sub-regulations:
Sub-regulation 2.1- definition of "aeronautical frequencies"
Sub-regulation 2.2- definition of "aeronautical mobile-satellite frequencies"
Sub-regulation 2.4- definition of "amateur frequencies"
Sub-regulation 2.14- definition of "emergency position indicating radio beacon station"
Sub-regulation 2.16- definition of "land mobile frequency"
Sub-regulation 2.22- definition of "maritime frequencies"
Sub-regulation 2.26- definition of "radiodetermination frequencies"
Sub-regulation 2.29- definition of "survival craft station"
Proposed sub-regulation 2.25 omits the definition of "Radiocommunications Australian Spectrum Plan".
Proposed sub-regulation 2.28 inserts a definition of "spectrum plan". The term is defined to mean the spectrum plan in force from time to time under the Act.
Amateur Examinations conducted under the Regulations (Sub-regulations 2.5, 2.6, 2.7, 2.8, 2.10)
Definitions of the various kinds of amateur stations have been amended so that they no longer refer to examinations conducted under Regulation 15, 16, 17 or 17A. Examinations referred to in the regulation will be "a category of 'approved examination' for the purposes of s. 122(2) of the Act". The subregulations which make these amendments in this way are:
Sub-regulation 2.5- definition of "amateur intermediate station"
Sub-regulation 2.13- definition of "amateur limited station"
Sub-regulation 2.3- definition of "amateur novice limited station"
Sub-regulation 2.8- definition of "amateur novice station"
Sub-regulation 2.10- definition of "amateur unrestricted station"
TLS Repeal Related Amendments (sub-regulations 2.3, 2.9, 2.18, 2.23)
In the following definitions of Regulation 3 of the Principal Regulations, the phrases containing the words "technical licence specification" are omitted by the following subregulations:
Sub-regulation 2.3- definition of "aircraft station"
Sub-regulation 2.91- definition of "amateur station"
Sub-regulation 2.18- definition of "limited coast marine rescue station"
Sub-regulation 2.23- definition of "maritime ship station"
Satellites Related Amendments (sub-regulation 2.11)
Sub-regulation 2.11 omits the definition of "AUSSAT service".
Accreditation Related Amendments (Sub-regulations 2.13, 2.15, 2.19)
Sub-regulation 2.13 inserts into the definition of earth receive station a reference to coordination work being done by a person accredited under section 263 of the Act, as an alternative to the work being performed by the SMA.
Sub-regulation 2.15 inserts into the definition of fixed receive station a reference to coordination work being done by a person accredited under section 263 of the Act, as an alternative to the work being performed by the SMA.
Sub-regulation 2.19 inserts into the definition of major coast receive station a reference to coordination work being done by a person accredited under section 263 of the Act, as an alternative to the work being performed by the SMA.
Amendments related to the introduction of LCDs (Sub-regulations 2.12, 2.17, 2.20, 2.21, 2.24, 2.27)
Sub-regulation 2.12 inserts a definition of "carriage service". This definition was required in conjunction with an updated definition of 'outpost station' so that the Radiocommunications Regulations would be consistent with the new Telecommunications Act 1997.
Sub-regulation 2.17 inserts a definition of 1icence condition determination", This sub-regulation defines that term in relation to a licence to mean conditions as determined by the SMA under paragraph 107(1)(f) of the Act.
Sub-regulation 2.20 inserts the requirement that maritime coast stations be operated on land.
Sub-regulation 2.21 removes the requirement that an authorisation to communicate with land mobile, aircraft, and outpost stations be specifically inserted into the apparatus licence for a particular station.
Sub-regulation 2.24 amends the definition of "outpost station" in order to update it and ensure that it is consistent with definitions in the Telecommunications Act 1997
Sub-regulation 2.27 removes the word "and;" which was repeated as the result of a drafting error in the definition of "ship station class K in the Principal Regulations.
Regulation 3
Sub-regulation 3.1 omits the former Regulation 4 of the Principal Regulations declaring the AUSSAT satellites to be Australian satellites for the purposes of the Act, and inserts a new Regulation 4 into the Principal Regulations.
Sub-paragraphs (a) and (b) of the new Regulation 4 respectively declare two classes of satellites to be Australian satellites, namely satellites operated by Optus Networks Pty Limited to provide communications services to Australia, and satellites operated by Iridium LLC to provide mobile satellite services to Australia.
Sub-regulation 4.2 defines the term "mobile satellite services".
Sub-regulation 4.3 provides that the phrase "communications services to Australia" includes services to, from and within Australia.
Regulation 4
Sub-regulation 4.1 omits Regulation 15 of the Principal Regulations which deals with Amateur Operator's Examinations
Regulation 5
Sub-regulation 5.1 omits Regulation 16 of the Principal Regulations which deals with Limited Amateur Operator's Examinations
Regulation 6
Sub-regulation 6.1 omits Regulation 17 of the Principal Regulations which deals with Novice Amateur Operator's Examinations
Regulation 7
Sub-regulation 7.1 omits Regulation 17A of the Principal Regulations which deals with Novice Limited Amateur Operator's Examinations
Regulation 8
Sub-regulation 8.1 omits from paragraph (f) of Regulation 37 of the Principal Regulations the phrase technical licence specification" and substitutes "a licence conditions determination".
Regulation 9
Sub-regulation 9.1 omits items 2, 3, 4 and 5 from Schedule 1 of the Principal Regulations dealing with amateur examinations.
Regulation 10
Sub-regulation 10.1 repeals the Radiocommunications - Australian Spectrum Plan made on 7 December 1990, that is contained in Statutory Rules 1990 No. 413.